DPP v Adams [2017] VCC 662

1. Augustine Adams, you have pleaded guilty before me to three charges, one of dishonestly obtain a financial advantage by deception from a Commonwealth entity, namely the Australian Taxation Office ("ATO") in the sum of $62,699.02 contrary to s.134.2(1) of the Criminal Code (Cth); one charge of false accounting contrary to the s.83(1) of the Crimes Act 1958 (Vic) and one charge of theft contrary to s.74(1) of the Crimes Act 1958 (Vic).
2. Those offences are all serious and that is evidenced by the maximum penalty prescribed by Parliament, namely ten years' imprisonment, for each offence.
3. You have also admitted your criminal record, there was one prior court appearance that is historical in nature. On 26 October 1993 at the Heidelberg Magistrates' Court you were dealt with for three counts of obtain social security benefits that were not payable and on all charges without conviction the matter was adjourned for 12 months upon you entering into a good behaviour bond. Further, an order was made that you make reparation in the sum of $7,241.20 and $320 costs.
4. The context of that earlier offending was that you did not declare earnings from your driving of a taxi whilst in receipt of social security benefits so that you obtained moneys that you were not otherwise entitled to.
5. You are now aged 52. At the time of these offences you were a qualified accountant and registered tax agent. You were the sole director and principal of a business known as Big Tax Pty Ltd ("Big Tax") that prepared and lodged income tax returns for clients.
6. I will now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and is exhibited.
7. You come from Nigeria originally and you are now an Australian citizen. You qualified as an accountant having obtained a Bachelor of Commerce from La Trobe University. You were then registered as a company tax agent with the Tax Practitioners Board ("TPB") on 1 July 1998. You were employed as an accountant initially with a firm called Cunnington's Pty Ltd. That was a tax return preparation service located in Endeavour Hills. You purchased that business in about 2004 or 2005 and relocated the business to Dandenong South. During 2010 you changed the business name to Big Tax.
8. On 1 March 2010 you applied to and were successful as being registered as an individual tax agent by the TPB.
9. The offending occurred in the context of you engaging in criminal conduct in the course of your role as a tax agent.
10. You used three different methods to engage in offending, namely:
    • (1) Falsifying taxation computation estimates ("TCE"), submitting a true income tax return and then producing a false notice of assessment ("NOA") for the client, and remitting to the client a tax refund that was lower than they were entitled to receive. You then kept the difference between the actual refund and the amount that you had estimated for the client.
    • (2) Amending returns whereby having provided a service to a client you would then access the ATO portal and submit an amended income tax return for a different tax year without the client's knowledge or permission. You would then retain the entire refund that was paid as a result of that conduct.
    • (3) You submitted fraudulent income tax returns where you would submit returns on behalf of clients without their knowledge or permission, and you would retain the entire refund that was paid as a result of this conduct.
11. Charge 1 involves you lodging 24 unauthorized income tax returns or amended income tax returns whereby you obtained a financial advantage by deception from the ATO totalling $62,699.02. The following table sets out the individual taxpayer's details and the details as set out in the Crown opening.

1. Charge 2 concerns the lodgements where you prepared a false taxation computation estimate and modified a notice of assessment and sent it to the client. You did that on 22 occasions and the amount that you retained in total is $57,350.43. That is reflected in Table 2 below.

1. Charge 3 concerns lodgements where you committed theft against two taxpayers, Keith Andrew and Taki Maxwell. You retained $5,913.95 belonging to Keith Andrew, and $3,144.89 belonging to Taki Maxwell. A total of $9,058.84 in total.
2. As a result of your criminal conduct, you obtained the sum of $129,108.29 to which you were not entitled.
3. The offending came to light as a consequence of a complaint made by Mr Duncan, a taxpayer, who was also a former client of your business. As a result of his complaint you were visited by ATO officers who conducted an audit on files of random clients. You were questioned during the course of the audits about the claims made by Mr Duncan and admitted to providing him with a false TCE and remitting to him an amount less than the refund to which he was entitled to. You then furnished the names of an additional 14 clients where you had amended their income tax returns for your own gain.
4. Subsequently search warrants were executed in respect to your banking provider, your Big Tax office in Dandenong South, your residential home and a self-storage unit that you controlled. Further information was obtained from those searches as a consequence of which your offending was fully discovered.
5. Two formal records of interview were conducted, the first on 16 September 2015, the second on 30 November 2015 and during the course of those interviews it is conceded that you made full and frank admissions to your offending.
6. You surrendered both your tax agent registrations through the Tax Practitioners Board on 15 October 2015 and you were deregistered on 20 November 2015. Your company, Big Tax, was deregistered through ASIC in September of 2015.
7. You have therefore paid a significant price, the loss of your professional qualifications and registration and your ability to conduct your practice into the future.

1. You were charged on 30 August 2016 and a filing hearing was conducted on 22 September 2016. You entered a plea of guilty at the committal mention on 23 January 2017 and the matter then proceeded by way of straight handup brief. It is conceded that the plea of guilty was entered at the earliest opportunity.

1. The context to the offending was that you committed these offences because of your experiencing severe financial difficulties. In addition to the company, Big Tax, you were involved in another business called "X-plode Fitness". You had also lost investment monies as a consequence of the failure of a franchise company known as "Refund Home Loans". You lost a total of $47,000 when that company went into administration, shortly after you had purchased the franchise.
2. In June of 2010 you successfully completed training with the Mortgage and Finance Association of Australia. It was some time after that time that you obtained the franchise of Refund Home Loans and because of its collapse, you did not recover or recoup any of your investment.
3. The material before the court shows that that company, a Queensland company, went into administration in June 2012 owing significant debts, in the millions, to its creditors.
4. It was obvious to me, having regard to all the financial material that has now been furnished to the court that you were in a precarious financial situation when you committed these offences.
5. As a consequence of the charges being laid, you voluntarily declared bankruptcy in July 2015. The company, X-plode Fitness, ceased operations in 2015. You are presently relying on support from your family and friends and you are not in receipt of any government assistance.
6. So far as the offending is concerned, you acknowledge the gravity of the offending and that it has had real consequences for the victims.
7. The court received three victim impact statements, one from Jessica Dixon, setting out in her statement of 23 April 2014, that she felt distressed and anxious and shocked that a tax agent would do such a thing to her. She remains fearful that it may impact upon her in terms of her future dealings with the ATO.
8. Mr Eyer, in his statement of 1 May 2017 confirms he has lost trust in accountants as a consequence of your actions.
9. Finally, an unsworn statement was provided by Mr Zorricueta who outlined to the court his feelings of deception, frustration and loss of trust as a consequence of your actions. It is reported he had trouble sleeping as well. His statement is not signed but having regard to the nature of the offending, I accept that those sorts of feelings would be reflective of somebody who had suffered an abuse of trust of this nature.
10. Mr Adams, in sentencing you, there is a need for the court to denounce your behaviour and to emphasise both general and specific deterrence. Given your conduct postoffending, the need to emphasise specific deterrence has been modified or moderated to an extent. Nevertheless, your offending did involve careful planning and significant deception of your clients, abuse of your role as tax agent and also abuse of your professional responsibilities towards your clients and the broader group of taxpayers who are affected by any fraud against the Australian Taxation Office and also the Australian Taxation Office itself, led to the loss of a total sum of $129,108.29, a not insignificant sum for which there has been no reparation.
11. The offending took place over a two year period from 6 July 2012 to 1 June 2015 for Charge 1, and between 8 August 2013 and 19 January 2015 for Charge 2, and between 14 January 2014 and 24 July 2014, Charge 3. A not insignificant period of time.
12. You were the sole instigator of this scheme which involved many individual acts of dishonesty and I note that each of the charges are rolled up charges.
13. You are a person who does not come before the court without any prior criminal history but I note the age of the previous matter and the fact that you were not convicted by the court. You were placed on a without conviction adjourned bond which you adhered to. I have taken those factors into consideration and I consider that otherwise you are a person of good character. But that is not an unusual feature in these sorts of white collar fraud cases.

1. You are a married person but are separated currently from your wife Scholastica. You live separate and apart under the same roof. There are three children of the marriage aged 13, 17 and 21 respectively. You are still heavily involved in each of your children's care.
2. Tragically your 17 year old daughter, Chiamaka, has serious health issues. She has been diagnosed in 2015 with a brain tumour. She is currently under the care of the Royal Children's Hospital and Dr Peter Simm, endocrinologist reviews her regularly. Her treatment includes medication that causes recurrent severe headaches, dizziness and tiredness. Her general practitioner, Dr BruceLaryea states she needs her parent's ongoing physical and mental support.
3. Your 21 year old daughter Chizomam has recently been involved in a transport accident that occurred on 17 April 2017, following which she was hospitalised for two days. She has ongoing pain in her left shoulder and arm. You are involved in taking her to various doctors and to her physiotherapist for treatment.
4. Your 13 year old son is a full time school student and you are involved transporting him to and from school and other sporting activities.
5. Your wife, a nurse, who is on call, relies heavily upon you in terms of the assistance that you provide with respect to your three children. Her doctor confirms that she suffers from hypertension, fibromyalgia, asthma and migraines for which she is treated. Over the past couple of years her stress levels have worsened, the severity and frequency of her headaches. Because of your current inability to earn income, she remains the sole income earner and provider in your family. Her general practitioner, Dr BruceLaryea confirms she needs your support as the family goes through a stressful period of dealing with your younger daughter's diagnosis and medical condition.
6. Following your arrest and the laying of these charges, you have suffered from depression and anxiety and you have had some treatment from your general practitioner, Dr Xia Zhang. He has referred you for psychological counselling. That was done in October 2015, and you have been prescribed Lexapro. You were placed on a Mental Health Plan and follow up care was provided by Ms Bernadette Bomford, a psychologist.
7. In Dr Zhang's letter of 12 December 2016 he states that your depressive symptoms have persisted and further counselling was required.
8. Ms Bomford, in her report of 4 May 2017 confirms she is seeing you for psychological counselling over many sessions and you have expressed appropriate remorse to her. She notes that there has been one attempt at suicide but that was interrupted by your son. You express feelings of having let your family down and you have had ongoing issues concerning your depression. She also made a note that you have been diagnosed as having a mild stroke.
9. The material from the Monash Emergency Department confirms on 19 November 2016 following a CT scan, that there was evidence of an established infarct on the right posterior fossa and you are having treatment ongoing in respect to your condition.
10. Ms Bomford notes that you feel unsettled and unhappy about your behaviour and you have not been able to obtain permanent employment. You are currently on prescribed medication with respect to your depression and other medical conditions, dyslipidaemia, hypertension and prostate hypertrophy.

1. I have regard to the mitigating factors put on your behalf. I consider that in this case it is significant that when you were confronted by the ATO officers, the auditors, you were full and frank in your disclosures with them and you actively participated in the two records of interview and made admissions against your interest. Your cooperation was fulsome and I consider that it is indicative of real remorse on your behalf.
2. You entered a plea of guilty at the earliest opportunity. Your plea means that you acknowledge the wrongfulness of your actions and have demonstrated a willingness to accept responsibility. I accept that there is real utility in your plea and you have facilitated justice so your sentence will be discounted accordingly.
3. I have had regard to the fact that there was delay between the time of the detection of the offending by the ATO auditors and the laying of the charges. You have had this matter hanging over your head for some considerable time, which has caused you anguish. I note that the original investigator left the ATO and that may, in part, explain the reason for the delay in the laying of the charges.
4. In sentencing you, I must impose just punishment and formally, on behalf of the community, denounce your behaviour. General deterrence is of particular importance. A message needs to be sent to the community that those in a position of responsibility such as tax agents ought not abuse their position of trust, otherwise they face stern punishment.
5. I have had regard to the many factors that I must take into account when sentencing you, pursuant to both s.16A(1) and (2) of the Crimes Act 1914 (Cth) and s.5 of the Sentencing Act 1991 (Vic). In determining the sentence to be passed in respect to the Commonwealth charges, I must impose a sentence or make an order that is of severity appropriate in all the circumstances of the offending.[1] And in respect to the State charges, I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[2]
6. One of the significant mitigating factors in your matter is that I have accepted that the combination of features that applies in your case, those circumstances are exceptional, and I accept that you have met the test for family hardship as set out in the case of Markovic v The Queen; Pantelic v The Queen.[3] Therefore, that will be taken into consideration on your behalf.
7. As discussed in the plea hearing with both the prosecutor and the defence counsel, I consider that yours is a situation which can be described as truly exceptional. You have a 17 year old daughter who is grappling with the consequence of a severe illness that is impacting upon her every day. Her situation is very difficult, particularly for a child of 17 who would be experiencing the normal stresses associated with being a 17 year old undergoing her VCE year, but in addition, she has serious medical issues that impact upon her both physically and mentally and you have to support her. As well your wife has her own set of medical conditions that I have described and now your eldest daughter has also her own set of medical conditions that must be dealt with. So given the particular family circumstances that you have, I do consider family hardship applies. If you were to be imprisoned that that would have an adverse effect upon your family and cause family hardship.
8. In the past courts, including appellate courts, have repeatedly emphasized that frauds against the Commonwealth of its agencies does require the imposition of sentences that give real effect to the principles of general deterrence and denunciation. Part of the reasoning for such an approach is that such offending is often easy to commit but difficult to detect, and this is obviously an example whereby a tax agent has been able to commit offences of this nature over the period in the indictment and it was only because of a complaint made by one of the affected taxpayers that it came to light.
9. It is obvious that the ATO has set up systems so as to provide ease of access to registered agents to facilitate the efficient determination of taxpayers' liabilities. Such revenue systems rely on the honesty of tax agents and Mr Adams, by your actions, you have abused your trust as a tax agent, you abused your professional obligations and responsibilities which impacted upon the individual taxpayers and the ATO, and in those circumstances, there is a real need to emphasise both general and specific deterrence and denunciation.
10. Overall, having regard to the particular circumstances, I have considered ultimately that a gaol term ought be imposed in respect to the first charge involving the federal legislation and in respect to the other two remaining State charges, I will impose a Community Correction Order.
11. It was submitted on your behalf that noncustodial disposition be considered and initially a suspended sentence was sought in respect to the State charges. Suspended sentences were abolished in this State in respect to all offences on or about 1 September 2014. It was submitted by the Crown and it is the law that a suspended sentence did remain open in respect to Charge 2 but not Charge 3.
12. However, given the new sentencing regime that is available in the State of Victoria, I do not consider that it is appropriate to impose a suspended sentence on one charge but not the other State charge. It is more in keeping with the current sentencing practices in this State that a Community Correction Order be imposed in respect to the State charges.
13. Overall, having regard to the totality of your criminality, the degree of sophistication and deception involved and the significant breach of your trust as a tax agent, I consider that the imposition of a gaol term is appropriate in respect to the Commonwealth offence, Charge 1.
14. I note that the prosecutor accepted generally the circumstances that have been put in respect to the hardship aspect and he submitted that nonetheless, a gaol sentence was the only appropriate disposition and that the court ought temper the time to be served. He made no concessions concerning whether exceptional circumstances has been made out.
15. I have already explained my reasons why I consider exceptional circumstances have been made out and combined with the other features that I have highlighted in my sentencing remarks, that is your full cooperation, your discount for your early plea of guilty, your contrition or remorse that has been demonstrated, as well as the hardship all combine, such that I will impose a gaol term but I will release you on a Recognisance Release Order immediately in respect to the first charge.
16. With respect to the State offences, as was explained by the Court of Appeal in Boulton v The Queen ("Boulton")[4], the availability of Community Correction Orders has dramatically changed the sentencing landscape in the State of Victoria and the courts can now choose a sentencing disposition which enables all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to an option, imprisonment, which is skewed towards retribution and deterrence.
17. A Community Correction Order has been considered to be punitive;[5] they can achieve deterrence[6] and may be suitable even in cases of relatively serious offending which might previously have attracted an immediate term of imprisonment.[7] Those observations apply clearly in the circumstances of this case.
18. I will now repeat the formal court orders that I made earlier. In respect to Charge 1, you will be convicted and sentenced to two years' imprisonment to be released immediately on a Recognisance Release Order with Recognisance fixed at $1,000 with a condition that you be of good behaviour for two years.
19. With respect to Charges 2 and 3, on both those charges, you will be convicted and sentenced to a two year Community Correction Order.
20. In addition to the mandatory core provisions, you will be required to be subject to supervision and required to perform 200 hours unpaid community work over a period of two years. That Community Correction Order has an operational period of two years.
21. I make the s.6AAA declaration that but your plea of guilty I would have imposed a term of imprisonment of three years to serve 18 months.
22. I make the order that compensation orders be made in favour of each of the individuals outlined in the annexure in the amounts sought.
23. I believe that concludes my sentencing remarks.
24. MR CHALLEN: Your Honour, I have prepared a recognisance based on the order that you have announced.
25. HER HONOUR: Yes.
26. MR CHALLEN: The usual course, in my experience, is for Your Honour to sign the order.
27. HER HONOUR: Yes.
28. MR CHALLEN: And date it.
29. HER HONOUR: Yes.
30. MR CHALLEN: And then for Mr Adams to sign the recognizance which is behind it and for that signature to be witnessed by your associate.
31. HER HONOUR: Okay, thank you. I just make it clear so that it is obvious from the transcript, but I will just make it clear, that Mr Adams has had explained to him both the Commonwealth Recognisance Release Order, how that works, what happens in terms of breach and my powers and in respect to the State Community Correction Order he has been explain the mandatory orders, the additional special conditions that apply to him and the consequences in the event of breach, including that he does stand to be resentenced in respect to both matters in the event that he does not comply with the terms of these orders. I just thought I would make that abundantly clear.
32. I have signed that order. And I will sign this. All that remains is for Mr Bradley to accompany my associate down to the dock for Mr Adams to sign the two orders and then once that is done a copy will be provided to him and he will be free to go.
33. Both the documents have been signed? Good. Thank you. Mr Adams can now be released from the dock and I will adjourn the court.

[1] Crimes Act 1914 (Cth) s 16A(1).

[2] Sentencing Act 1991 (Vic) s 5(3).

[3] [2010] VSCA 105.

[4] [2014] VSCA 342.